In late 2018 the Australian Parliament introduced the Modern Slavery Act 2018 (Cth) (Act). The purpose of the Act was to try to ensure that Australian corporations whose annual revenue exceeds $100 million (or foreign firms operating in Australia with the same revenue) do not assist in anyway the global ‘modern slave’ trade. The Act requires ‘around 3000 entities based or operating in Australia to prepare annual statements on potential modern slavery risks in their operations and supply chains’.

phenomenon that, unbelievably, is still rampant across much of the globe. Even in this day and age it is difficult to believe that slaves are still a feature of the modern landscape in various insidious ways. But it is not just corporations that might be (inadvertently) involved with slavery—modern slavery is said to exist also with those who are subjected to forced marriages. For all we know, you and I could in some ways be inextricably linked to the practice due to the products we buy and the foods we consume. For these reasons it is very important that Australia’s position in relation to this practice is more than mere ‘virtue signaling’ but is a real attempt at combating slavery.

What is ‘modern slavery’?

There are quite a number of international legal instruments created since the abolition of slavery in the 19th century that attempt to define and prohibit the practice of ‘modern slavery’. According to article 1 of the International Convention to Suppress the Slave Trade and Slavery (signed at Geneva, 25 September 1926) (ICSSTS), slavery connotes a form of ownership of one person over that of another. Article 1 goes on to say that the slave trade includes, all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.

If you were able to ascertain from this definition that a big part of slavery presumes ownership over a person, then you’d be correct. Slavery is everything to do with property rights – that is, treating human beings as property, the same way we would treat ownership over domestic animals. For most of us such an assumption runs counter-intuitive, even somewhat grotesque, to think that one group of people are able to own another group of people much the same way as we can own a dog or a cat.

Other international conventions further strengthened the international community’s requirement to form policies and domestic laws to counteract the effects of global slavery and slave-like conduct. In response, the Australian Government initiated the National Action Plan to Combat Human Trafficking and Slavery in 2014. The Plan was centred around four pillars:

Prevention and deterrence;

Detection and investigation;

Prosecution and compliance; and

Victim support and protection.

Another feature was the introduction of several slavery-like practices and human trafficking offences into the Commonwealth Criminal Code 1995 (ss 270 and 271).

How large is the problem of ‘modern slavery’?

The size of ‘modern slavery’ is, as one might imagine, difficult to quantify. Various organisations put the total figure at around 40.3 million people who are subjected to some form of slavery (see, eg, the International Labour Organization and Walk Free Foundation). Of that number, it is estimated that around 24.9 million people are in some form of forced labour and 15.4 million are in forced marriage. Although Australia is believed to have a very low number of people subjected to slavery (around 0.6 persons per 1000 – approximately 15,000 people), what is of greater concern for Australia and other developed nations is not what is occurring within the borders of the nation, but what is occurring outside its territorial borders within the product supply chains that service Australian firms and the Australian market. While the Australian Government cannot regulate overseas firms it can regulate Australian firms and the Modern Slavery Act provides an excellent opportunity to do so. The Act recognises that there is a risk that Australian corporations in operating in a globalized and interconnected world are, in some ways, aiding and abetting slavery and the slave trade in ways that are not necessarily obvious in the corporation. The industries that seem most at risk include agriculture (particularly fisheries), construction, electronics, fashion, hospitality, and interestingly, higher education.

In developing the Australian law, the Australian Government looked to the UK’s Modern Slavery Act 2015 (UK Act) which was the first jurisdiction to introduce a national modern slavery reporting requirement. The UK Act requires corporations whose revenue exceeds approximately $AU63 million per annum to participate in mandatory reporting in relation to slavery. Several years after the UK Act was introduced, the Australian state of NSW followed suit and introduced the NSW equivalent of the UK Act, called the Modern Slavery Act 2018 (NSW). The NSW scheme is quite progressive when compared to even the UK model. The NSW Act contains mandatory reporting thresholds of $AU50 million annual revenue for any corporations that have employees in NSW. Affected entities must report annual modern slavery statements that outline what steps they have taken to ensure that slavery is not part of its supply chains. One aspect of the NSW legislation that has received praise is that it contains penalty provisions (10, 000 penalty units = approximately $AU1.1 million) for non-compliance.

The Commonwealth’s new Modern Slavery Act was (and still is) a cause of great concern for both sides of the political spectrum and business in general. The arguments are binary in nature. Some argue that the legislation does not go far enough and others (particularly business) assert that the revenue threshold at $AU100 million are too low. The reality is that the Commonwealth Act is far more lenient on corporations than the NSW and UK Acts. For instance the reporting threshold for the Cth Act is currently set at $AU100 million per annum revenue which is substantially below that of the UK and NSW schemes. In addition, there are currently no penalty provisions built into the Commonwealth Act for non-compliance. Another criticism of the Act is that there is currently no Independent Anti-Slavery Commissioner to oversee the implementation of the Act and compliance thereof. So, what happens if an Australian firm identifies that slavery is in its supply chain – what then? The Commonwealth Act is unclear whether the Australian firm must cease trading with that firm or whether reporting the information is merely “FYI”. Not ideal.

The private sector has made several complaints against the legislation stating that compliance costs for those corporations subject to mandatory reporting (estimated at around 3000 firms) will cost approximately $AU21,950 per annum, per firm, at a minimum. Attempts were made by various interest groups (eg the Australian Chamber of Commerce and Industry) to increase the threshold from $AU100 million to a higher amount so as to capture only the top 100-200 firms. This attempt was made on the basis that reporting would be too onerous on many firms. It seems, however, that the current threshold of $100 million receives the support of various other industry groups such as the Business Council of Australia, the Australian Industry Group and the Australian Retailers Association. Various ‘civil society’ groups that support the threshold amount are Walk Free Foundation, the Salvation Army and various church groups. There are others, such as Greens, who have come out and attacked the threshold on the basis that they do not believe that the current threshold would support meaningful change in relation to slavery.

Although it is quite early days at the moment, it could be argued that one of the biggest issues in relation to Act is the higher rate of revenue threshold reporting. Although the Act would capture over 3000 corporations, it is arguable that an arbitrary amount of revenue is somewhat illogical. What about the corporations that are regarded as small to medium that are engaged in international trade that would not be compelled to report? Is it that these entities are deemed less likely to engage with slavery? Or is it an acknowledgement from the Government that it must impose arbitrary monetary limits because it is unable to cope with all the reporting and administrative operations that such a reporting scheme requires? Or, is it a situation whereby the Government is torn between the need to eradicate global slavery on the one hand (and thereby fulfilling its international legal obligations) and the imperative to ensure that Australian businesses are not stifled too much, on the other? Truth be told, it is probably because of all of those reasons.

Further criticisms regarding the lack of enforcement are also of concern for many. Even the lack of a requirement to publish lists of non-compliant entities together with other deficiencies point to the argument that the legislation is effectively a compromise that seems to raise more concerns than it addresses. In this regard, the Australian Modern Slavery Act could be said to be a ‘virtue signal’—aka ‘lip service’, or a signal that shows to the world that Australia is, to some extent, addressing the global scourge of slavery, but only so far as it does not affect the majority of Australian businesses. Some have suggested that in placing the legislative settings it has, the Government is engaging in classic sovereignty politics by putting Australian corporate interests ahead of human rights protections. On the flip-side, of course, equally plausible arguments could be made that protecting Australian jobs and industry is precisely what the Government should be doing.

In any event, the Act will be reviewed three years from when it commenced in 2019 and perhaps this will provide an opportunity to better understand whether it should be amended or left as is. One thing is for sure whether one is critical of the Act or not, the introduction of such legislation is a major step in the fight against slavery.

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This year marks the 40th anniversary of the publication of Phillip Piccigallo’s ‘Japanese on Trial’. At the time of its publication Piccigallo’s text was unique in the sense that up until that point no one had sought to undertake a comprehensive research project of the Allied war crimes military commissions that were conducted in the aftermath of the Pacific War. Despite its faults, this text still remains one of several texts that have withstood time and is an extremely useful reference for those who wish to gain a broad overview of the Allied war crimes program after the Pacific War.

In 1979, Philip Piccigallo completed his work entitled TheJapanese on Trial: Allied War Crimes Operations in the East.[1] Picigallo appears to be the first to provide a comprehensive commentary of the entire Allied war crimes trials—albeit contained within 265 pages. Piccigallo provides various statistical data in relation to the trials. These statistics include the number of trials conducted, the number of accused, the number of convictions, numbers relating to those who received the death penalty, numbers relating to life convictions, and those who were acquitted.[2] Piccigallo warns of possible deficiencies with the numbers, however, particularly due to the exclusion of Soviet data due to the Cold War.

The lack of Soviet data does little to detract from the benefit of Piccigallo’s work; the major problem with Piccigallo’s work is his reliance on non-primary trial data—a sentiment echoed recently by Totani.[3] Piccigallo mostly relies on secondary sources to substantiate his claims[4] and this is perhaps a flaw in Piccigallo’s work. Piccigallo relies mostly on government publications, news accounts, and another author, John Appleman, Military Tribunals and International Crimes (Bobbs-Merrill 1954) for most of his statistics.[5] Piccigallo does make the point, however, that his work does not ‘examine exhaustively’ the thousands of Allied war crimes trials conducted throughout the Far East; though he concedes that such a study is ultimately needed.[6] One would need to keep this in mind when drawing any extrapolations from the numerical data he presents.

Although not a lawyer, one interesting observation Piccigallo offers is the temporal connection between the higher number of death sentences handed down at the beginning of the trials, versus the lower number of death sentences given— many of which were later commuted to prison terms—in the closing period of the trials. According to Piccigallo, this sentencing pattern reflects the level of aggrievement that the individual nation felt towards Japan in 1945 and that sentencing practices in the early part of the trials ‘reflected a greater intensity of wartime passion, and less tempered compassion’ than sentences in the later stages of the trials.[7]

Piccigallo has been criticised by some that his analysis sorely ignores the myriad of deficiencies of the trials. This is despite Piccigallo’s express claims of objectivity, in the ‘Von Rankean’ tradition.[8] Richard Minear is one such critic who argues that Piccigallo’s ‘entire book is an attempt to undermine criticism of the Tokyo trial and the many minor trials’.[9] Minear makes this assertion on the basis that Piccigallo deliberately ignores ‘larger issues’, such as the causes of the Pacific War, the fact that Allies also committed war crimes, and that Piccigallo explores nothing of the alleged Japanese crimes themselves.[10] Minear, an historian as opposed to a lawyer, is critical of Piccigallo due to Piccigallo’s non-critical approach to the Allied war crimes trials. In essence, Minear seems to be asserting that Piccigallo is an apologist for any errors or injustices that the Allies meted out against the Japanese after the war.

That Minear would make such a claim is understandable given the volatile context in which he wrote his seminal work, Victor’s Justice. Minear produced this oft-cited work at the time the US was embroiled in a bitter conflict in Vietnam. Minear’s criticism of the IMTFE and the Pacific trials seems somehow linked to Minear’s criticism of US foreign policy in relation to Vietnam, since, as Minear asserts, much of the foreign policy of the US in the 1950s and 60s stems from an emboldened and victorious US in the European and, especially, Pacific theatres of war.[11]

There is some merit to Minear’s accusation that Piccigallo failed to critically reflect upon the Allied trials. Minear’s argument is supported by Piccigallo’s tendency to use emotive statements such as, the ‘Japanese waged … a ruthless and inhumane campaign against opposing military forces and local civilian populations.’[12] The apparent irony that the same could be said about the Allies, particularly with the bombing of Japanese cities, appears lost on Piccigallo.

Another useful contribution that Piccigallo offers is the detailed way in which he describes the Allied ‘procedures’ and ‘machinery’,[13] for naming, locating and prosecuting Japanese military personnel suspected of engaging in war crimes against each of the Allied nations.[14] Piccigallo asserts that his study ‘seeks only to lay the groundwork for … further inquiry into Japanese war crimes trials … and makes no claim to definitiveness.’[15] Piccigallo’s objective was to provide ‘sweeping overviews of each nation’s war crimes trials program’.[16] Piccigallo has thus left open the opportunity for others to pick up where he finished but, sadly, few have attempted the challenge. Piccigallo’s work stands as a useful introduction for understanding the trials, and as a platform for further research into the Allied war crimes trials of the Asia-Pacific.

It must be said that Piccigallo’s work has been influential on this work in so far as ‘Japanese on Trial’ provided a detailed overview of the Allied war crimes programme which in turn gave an indication as to the sorts of records that were available, albeit during the 1970s. It needs to be said, also, given that Piccigallo was not a lawyer, the legal analysis contained in ‘Japanese on Trial’ was general at best, and therefore allows scholars to explore in detail the legal intricacies of specific elements of law, as has been the objective with this project.

[2] Ibid 264. Piccigallo provides two tables showing disputed figures – Table A from a Japanese source: Homu Daijin Kanbo Shiho Hosei Chosabu: Senso hanzai saiban gaishi yo [General History of Trials of War Crimes, Tokyo 1973]; while Table B shows consolidated statistics taken from Allied governmental sources for American, British, and Australian trials. Despite the slight discrepancy of numbers in relation to certain categories, the numbers between the two groups of figures remain relatively close with a maximum statistical variance of approximately 5.5%.

[5] Ibid, 274. Rome Statute of the International Criminal Court UN Doc A/CONF.183/9 138, 138–9. For example, Piccigallo cites, among others, the following to substantiate his statistical claims throughout the book: US Department of State, Occupation of Japan: Policy and Progress, Publication 2671 (Washington, DC, 1947); Supreme Commander for the Allied Powers, Trials of Class “B” and “C” War Criminals. History of the Non-Military Activities of the Occupation of Japan (Tokyo, 1952); John Appleman, Military Tribunals and International Crimes (Bobbs-Merrill, 1954); US Department of Navy, Final Report, v I; Stars and Stripes (Tokyo); US Department of State, Foreign Relations of the United States, 1948, 17 October 1948; John R Pritchard, The Nature and Significance of British Post-War of Japanese War Criminals, 1946–1948; Australian Encyclopedia, War Crimes Trials; United Nations War Crimes Commission, ‘History of the United Nations War Crimes Commission and the Development of the Laws of War’ (HMSO, 1948); and at least 16 different newspapers.

[11] Minear, above n 115; On this point, see also, Yuma Totani, The Pursuit of Justice in the Wake of World War II (Harvard University Asia Center) 2 – Totani eloquently states that ‘Richard Minear treated the Tokyo trial as an early manifestation of the self-righteous foreign policy of the United States that culminated in the Vietnam War’. For another critical appraisal of the IMTFE, see also, Dayle Smith, Judicial Murder? Macarthur and the Tokyo War Crimes Trial (CreateSpace, 2013).

(Res Judicata: Contemporary Issues in Administrative and Public Law ISSN 2206-3145)

On Saturday 19th March 2016, Queenslanders voted in the quadrennial local council elections. At the same time, a referendum was held on the question of fixed four-year parliamentary terms. Queenslanders were asked to decide on whether they should join the other Australian states (with the exception of Tasmania) and territories by adopting fixed four-year parliamentary terms. Up until the referendum, Queensland and the Commonwealth House of Representatives were the only Parliaments in Australia still using non-fixed three-year parliamentary terms. Even all local councils throughout Australia have adopted the quadrennial electoral cycle.

The results of the referendum are surprising. Although not an avalanche of support for extending the term, Queensland voters did express a clear majority opinion in favour of fixed four-year terms, thereby giving (or some might say, ‘gifting’) an extra year of job security for state politicians – for seemingly very little in return.[1]

Why the ‘Yes’ Vote?

What attracted voters to the idea of fixed four-year parliamentary terms? Perhaps it was not so much an attraction to anything in particular—more a perfect storm of voter apathy mixed with just the right dose of political spin and manipulation.

At the top of the list has to be voter apathy, or, as I have expressed elsewhere, the “burgeoning groundswell of disenchantment of politics”.[2] The Queensland Government was—as is the case with all political parties—acutely aware that many people have a dislike for politics and voting in general. What better way, then, to harness this sentiment than to use it as the basis for holding fewer elections—and that’s exactly what they did. In its report entitled Inquiry into the introduction of four year terms for the Queensland Parliament, the Finance and Administration Committee, noted at 3.1.5 “voter dislike of elections” was:

Anecdotally, a further argument often cited in favour of longer parliamentary terms is that Australians dislike the frequency with which they are required to vote. There is also an increasing disengagement of the voting public from politics in general, something that has been linked to a distaste of the perceived constant campaigning and polling within the electorate. Fewer state elections may reduce this political apathy to some extent.[3]

The proponents of the ‘Yes’ vote then conveniently conflated the “apathetic” argument with the costs that would be achieved if fewer elections were held as the basis for one of their arguments.[4] This was indicated in the ‘Yes’ Statement of Argument: “Fewer Elections Means Queenslanders Save Money – a yes vote would result in fewer elections and costs savings for Queenslanders”.[5] Two arguments in one!

Other arguments that the ‘Yes’ campaign used to justify an extended term, contained a number of sensible propositions. For example:

More certainty around timing of State general elections;

fixed term takes the politics out of election timing and prevents the government of the day trying to take advantage of calling a snap election; and

Policy development would be less driven by short-term political considerations and governments could act with a longer-term view.[6]

However, there were other arguments that were less convincing and should have given rise to concern:

prevent summer holidays being interrupted by an election and remove uncertainty for the tourism industry, event organisers and families who like to plan their travel;

For Regional and North Queensland, it means the election period is taken out of the wet season, which can prove difficult for regional communities exercising their right to vote;

The current maximum three-year term for Queensland’s Legislative Assembly was introduced in the 1890s;

and the one that really should have made people sit up and take note …

The introduction of fixed four-year terms for the Legislative Assembly is supported by both major parties and by the two Independent Members.[7]

Rarely have electors in Queensland seen such a display of camaraderie between the Liberal/ National coalition and Queensland Labor in support of parliamentary reform.[8] Why wouldn’t the fact that both parties were “lock, stock and barrel” on the issue of extending the parliamentary term attract greater scrutiny?

There was very little reporting from the Queensland media regarding such an important reform. One reason for this is probably due to the fact that not only did both major political parties support the reform, but so too did industry groups and the trade unions.[9] There was no real news story to report; no controversial angle or burgeoning political chasm exposed by polarised views for which news outlets could report. Parliamentary reform is one of those topics that would receive very little attention from the greater public and it is for this reason that the ‘No’ campaign received very little coverage. In fact, so little was the media coverage during the lead up to the council elections, it is doubtful whether all Queenslanders even knew a referendum was taking place. Most of the media coverage at this time was concentrated on the local council elections and the constant speculation in Canberra over the federal election date in that jurisdiction.

The problem with apathy is that it leads to inattentiveness and injudiciousness. It was the manifestation of these traits that permitted the seriousness of the question being posed, to slip past much of the electorate. How else could people fail to see the irony that it was just last year where voters vehemently registered their frustration with the Newman Government—had a fixed four-year cycle existed at the time, that Government may still be in power now.

Footnotes:

*Jamie Fellows lectures in law at James Cook University, Townsville. All views expressed in this post are his and his alone, including all errors and omissions.

[1] For the results of the Queensland referendum, see, Electoral Commission of Queensland website: < http://results.ecq.qld.gov.au/elections/state/REF2016/results/summary.html > the results published by the ECQ indicate that the ‘Yes’ vote received 53.04% and the ‘No’ vote received 46.96%.

[3] Parliament Finance and Administration Committee, Parliament of Queensland, Inquiry into the introduction of four year terms for the Queensland Parliament, including consideration of Constitution (Fixed Term Parliament) Amendment Bill 2015 and Constitution (Fixed Term Parliament) Referendum Bill 2015 – Report Number 16 (2015) 23.

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By Jamie Fellows* (Res Judicata: Contemporary Issues in Administrative and Public Law ISSN 2206-3145)

This post focuses on what I consider to be one of the most integral components of legal education in the early stages of law school. I argue that by gaining an appreciation of the historical and contemporary legal institutions and processes that have contributed to the development of the Australian legal system, students are better placed to achieve a deeper understanding of not only the substantive law studied later in the degree, but also, in my view, become more effective legal practitioners.

Unless law students are exposed to this inquiry in a critical way, we run the risk of allowing unreflective and perfunctorily driven graduates to enter the legal profession, perpetuating unquestioningly the erroneous ways of the past. I believe that one of the most important pieces of the legal educational “jigsaw” at university must involve a portion of the undergraduate’s studies that is dedicated to a critical investigation of the history of our legal system and why we as lawyers do the things we do. To achieve this it is necessary at times to go beyond the “black letter of the law” and to borrow freely – and selectively – from a range of disciplines at our disposal – such as political science, sociology, philosophy, cultural (including gender and race) studies, and history, to name a few.

One subject for which I have the pleasure of teaching is designed to achieve this early in the undergraduate degree at James Cook University – LA1101 (Legal Institutions and Processes). This subject is one of the foundation subjects that lawyers crucially need in order to understand a number of important elements such as: the intellectual and geographical place from where our system of law is derived; the formation of the Australian parliamentary, legal, judicial and governance systems; the Australian “settlement” story; the treatment of Indigenous Australians; the rationale that underpins Australia’s sovereignty and the failed challenges to it; rationale for native title; and the law making process, to name a few.

Any lawyer, no matter if they intend to work as a conveyancing specialist in a country town or whether she or he will enter a top-tier law firm in a capital city practising corporate law, needs to have an appreciation of the formation of the system for which they as members of the profession play a vital part. In terms of the relevance for students, by having an appreciation of these foundational matters early rather than later in the degree, I think it places the study of all other law units in much greater context because so much of the formation of other law depends on what has already transpired in Australia’s legal history. In other words the legitimacy of all past, current and future laws is dependent upon what has already transpired.

For instance, an appreciation of time periods is useful. If students are made aware of the context, fears, aspirations, and other pressure points of the constitutional drafters at the time when Australia’s Constitution was drafted, it might inform us of the way our leaders saw law, morality, race, gender, and rights at that time. We can compare that period with now and ask whether there needs to be any changes due to changes in attitudes. Likewise, when students are asked whether contemporary Australia continues to subjugate the rights of Indigenous Australians, most will answer in the negative, only to rethink this response when it is pointed out that all Australians who own property are the beneficiaries of the infamous terra nullius doctrine that was used to justify the denial of Indigenous sovereignty since settlement.

*Jamie Fellows lectures in law at James Cook University, Townsville. All views expressed in this post are his and his alone, including all errors and omissions.

The work of Ronald Dworkin is useful when examining judicial statutory interpretation. The judiciary are often faced with challenges on how best to interpret statutes and other rules when such lex scripta are not clear or the facts give rise to challenging normative interpretations. One such challenge is presented by the anti-stalking legislation in the Queensland Criminal Code as to whether criminal responsibility should be assigned where the victim is not aware or has no knowledge of the alleged stalking. The dilemma for the judiciary is whether criminal responsibility should be assigned when a person commits certain acts that would otherwise constitute unlawful stalking but there is no knowledge or awareness on the part of the person to whom the stalking is directed. The judiciary must grapple with the question as to whether a person is criminally liable even though no harm has resulted of the stalker’s activities. How must the judiciary decide such issues?

Dworkin asserts that there are a range of factors that judges employ, whether knowingly or not, when considering their reasons for their decision. Dworkin states that in hard cases, judges rely on a number of ‘principles’ of law that they use in order to maintain law’s ‘integrity’,[1] rather than posited rules.[2] Such ‘principles’ as argued by Dworkin, are engrained throughout the common law and include notions of fairness, proportionality,[3] and any other principle that goes to the moral blameworthiness of the conduct on the part of the offender.[4]

Essentially what Dworkin seems to be arguing is that such decisions are made on the basis of the individual judicial member’s own conception of morality regarding the facts of each case and the circumstances of the accused and the victim. The infusion of morals within the context of judicial decision-making would appear inevitable given that judges are not machines and would be susceptible to individualised notions of sentencing in each case. As such, it is doubtful that Dworkin is criticizing this inherent trait in relation to the judicial decision-making process, rather he is putting forward a plausible explanation as to some of the possible reasons for judicial reasoning in certain circumstances.

Dworkin argues that the use of ‘principles’ are integral in the process of interpreting law and maintaining integrity within the system.[5] Principles, as posited by Dworkin, take on the appearance of social ‘standards’ and as such, stipulate or advance a particular social good.[6] Lawyers use such ‘standards’ or ‘principles’ when arguing about rights and are integral in the requirement for justice, fairness or some other dimension of morality.[7] Interpreting law therefore does consist of moral interpretation by the application of such principles.[8] As an aside, it should be argued that the use of a disguised morality could be a cause of concern if doubts are raised regarding the nature of the ‘morality’ in question.

The use of ‘principles’ as Dworkins calls it, could encompass a wide variety of elements and there are numerous ‘principles’, as outlined above in which the judiciary might consider applying where the victim had no prior knowledge of the alleged offender’s actions. Parliament’s intention is certainly one aspect courts could consider[9] and there is some evidence of how this would be regarded in relation to the requirement of knowledge of the victim.[10] Courts may also consider the proportionality and fairness aspects of imposing criminal liability for behaviour that could also be interpreted as ‘normal’. The harm principle in combination with the above aspects might mean that unless there is clear evidence of the accused engaging in acts of unlawful stalking, the judiciary may be unwilling to impose criminal liability for unlawful stalking when the victim is unaware of the alleged perpetrator’s acts and the victim suffers no physical or emotional harm.

As the above analysis shows, the criminal culpability of an individual alleged to have committed acts of stalking, could be discerned by applying various tests to determine if the offence of stalking has occurred. However, what is unique for this offence is the fact that the victim’s own mental element must also be established in order for the Crown to prosecute its case. This may seem to be a strange state of affairs especially since it is usually the accused’s state of mind that is critical for this purpose, rather than the victim’s. Such an assumption would seem appropriate given that the function of the criminal law is to address the wrongful conduct of the accused. However, the cases of Davies and Taylor would seem to suggest that the prosecution does need to take into consideration, at least to some extent, whether the alleged victim had some form of knowledge of the accused’s stalking behaviour, and/or requiring the former to apprehend some form of fear or threat.

Such a proposition nonetheless introduces, somewhat counter intuitively, a fault element on the part of the victim, into an assessment of the alleged offender’s innocence or guilt. In most cases it will be plainly obvious to a person whether he or she is the subject of unwanted attention by another person, simply by the overtly manifest behaviour of the other. However there are instances where this will not be as clear to a potential victim as it might seem, and it appears that this question still remains unsettled – at least in Queensland.

[2] Dworkin contrasts the positivist position throughout his writings and cites a number of specific examples to highlight differences between his theory and those of the positivists such as H L A Hart.

[5] Dworkin, above n 59, 22-3. Dworkin cites a number of examples of such principles (e.g. principle involving that a criminal should not benefit from their crime; murderer shall not receive property under a will; and principles that restrict manufacturers from limiting their liability). Such principles are engrained throughout the common law.

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Stalking usually occurs as part of a concerted effort by the perpetrator either explicitly or implicitly to make their victim(s) aware of the presence of the stalker.[1] Most of the stalking related cases that have arisen in Queensland since the enactment of anti-stalking legislation have occurred where the victim was aware of such actions by the perpetrator. As such the question whether the victim is required to know they are in fact being stalked, has not arisen in many of these prosecutions. To illustrate the types of conduct that might typify acts of stalking, one needs look no further than the case of R v Ali which involved one party who perpetrated a range of acts over a period of 18 months that culminated in a conviction of stalking and a sentence of three years jail, pursuant to s 359B(d).[2]

The case of Ali initially started out as a dispute between residential neighbours concerning a common fence. Although the relationship was initially ‘satisfactory’, the victim later claimed that relations between the two quickly deteriorated after a dispute about a fence and the appellant then launched a concerted campaign that consisted of acts causing loud noises by banging on the fence, using power tools close to the boundary line, running lawn mowers close to the boundary and deliberately lighting fires in order that the ensuing smoke would drift onto the property of the appellant.[3]

The Alis later installed video cameras directed at the victim’s house and this was coupled with abusive language, ‘wolf-whistling’, offensive gestures, loud music, rubbish thrown into the victim’s yard, and the complainant’s plants mysteriously dying.[4] To compound matters, the Alis then erected three white crosses on the fence for the purpose of keeping the ‘devil’ away.[5] The victim claimed that as a result of the conduct of the accused, she was forced to take sleeping pills in order to combat emotional stress. The case of Ali illustrates the type of acts that anti-stalking legislation is perhaps most suited to be applied against and it is not difficult to see how the criminal law could legitimately be applied in circumstances where the acts of the perpetrator are as overt and offensive as those outlined in this case. Such acts can therefore be considered as part of the rationale for the justification of offences relating to anti-stalking.

Rationale for State Coercion

At what point is state coercion an acceptable imposition on an individual’s freedom for acts which are in the first instance bereft of illegality and appear, at least on a prima facie level, innocuous in nature?[6] This notion is raised by H L A Hart when he asks why are certain actions forbidden by law and others are not.[7] Hart asserts that it is for the legislature to deem certain behaviour unlawful and in doing so it ‘announces to society that these particular actions are not to be done and to secure that fewer of them are done.’[8] It would seem that Hart made this rational assumption on the basis of having overtly wrongful acts in mind, such as murder where it is easy to discern wrongful acts.[9] However, the problem arises with stalking since many acts of the stalker may not necessarily appear overtly wrong. Giving flowers or making contact in some benign way does not automatically relegate an individual into the realms of criminality. Hart is correct to say that one aim of the criminal law is to deem certain conduct criminal, and it comes down to posited rules which set ‘standards of behaviour to encourage certain types of conduct and discourage others … ‘.[10] In a true positivist sense, therefore, Hart argues that it is the law posited by the legislature that will determine whether such actions are in fact unlawful.[11]

One problem posed by this assertion, is the ever present danger that certain actions which appear prima facie benign could in fact attract criminal sanction in the context of stalking. This is because there exists a duality between innocent acts and those that are implicitly criminal due to the intent of the performer of those acts, the latter of which might appear quite normal and part of everyday activities but for the mens rea of the perpetrator. The line dividing these two categories is not clearly discernible in the language used in the statute itself and it is therefore for the Courts to resolve this ambiguity by determining which acts fall into the unlawful variety and therefore warrant punishment by the criminal law. The challenge facing the courts however is to articulate a theoretical framework in which such distinctions can be justified in a fair and reasoned manner. One problem relates to when ordinary acts become transformed into criminal acts and therefore require the restriction of an individual’s freedom? Put another way, what are the limits of criminal sanction that should be imposed in relation to those acts? Joel Feinberg lists four types of acts or purposes for which he calls ‘commonly proposed liberty-limiting principles’ that the law may legitimately coerce an individual and thereby restrict their liberty.[12]

The restriction of one’s liberty through the use of anti-stalking criminal laws, can be framed as a jurisprudential question that is part of a much larger tapestry of political and philosophical discourse concerning social control, on the one hand, and the expression of human agency, on the other.[13] The essence of whether the victim is required to know that he or she is being stalked goes to this very notion of ‘liberty’, and to the extent that it should or ought to be limited by the state. For by imposing a legal burden on the prosecution to prove that the victim knew or apprehended fear of violence, this goes towards affirming the accused’s personal autonomy, and that it can only be revoked when some more tangible form of harm is suffered by the complainant. One could assert that there should be no requirement under criminal law, that the prosecution need to prove actual presence of a mental element in relation to the victim in order for the offence to be made out. Surely the purpose of the criminal law is not to unduly place the burden of proof on the Crown to prove beyond all reasonable doubt that the victim knew or apprehended fear or violence stemming from the actions of the accused?

This article examines in detail the legislative requirements for unlawful stalking in Queensland and in doing so, highlights possible ambiguities as to whether the victim is required to know that the alleged perpetrator is engaged in certain activities.

Unlawful Stalking – s 359

The relevant anti-stalking provisions in Queensland are found in Chapter 33 Unlawful Stalking, ss 359A-359F of the Code. The actual offence of stalking is created pursuant to s 359E which provides for an aggravated form of the offence in certain circumstances. The current definition and relevant acts that might constitute stalking are listed in s 359B of the Code:

359B What is unlawful stalking

Unlawful stalking is conduct—

(a) intentionally directed at a person (the stalked person);

and

(b) engaged in on any 1 occasion if the conduct is protracted

or on more than 1 occasion; and

(c) consisting of 1 or more acts of the following, or a

similar, type—

(i) following, loitering near, watching or approaching

a person;

(ii) contacting a person in any way, including, for

example, by telephone, mail, fax, email or through

the use of any technology;

(iii) loitering near, watching, approaching or entering a

place where a person lives, works or visits;

(iv) leaving offensive material where it will be found

by, given to or brought to the attention of, a person;

(v) giving offensive material to a person, directly or

indirectly;

(vi) an intimidating, harassing or threatening act

against a person, whether or not involving violence

or a threat of violence;

(vii) an act of violence, or a threat of violence, against,

or against property of, anyone, including the

defendant; and

(d) that—

(i) would cause the stalked person apprehension or

fear, reasonably arising in all the circumstances, of

violence to, or against property of, the stalked

person or another person; or

(ii) causes detriment, reasonably arising in all the

circumstances, to the stalked person or another

person.

Accordingly, stalking is unlawful when it involves conduct that is intentionally directed at a person on any one or more occasions.[1] The provision makes it clear that stalking can occur on one occasion providing the alleged stalking is over a ‘protracted’ length of time.[2] The section then details a non-exhaustive list of acts which might constitute stalking and these include – following, loitering, watching, approaching, contacting, leaving offensive material where it will be found by the person, harassing whether or not involving violence.[3] The requirements pursuant to ss 359B(a)-(c) are then read in conjunction with s 359B(d)(i)-(ii) that stipulate the conduct would cause the stalked person to apprehend or fear or causes detriment.

The legislation contains a further provision under s 359C that details what is immaterial for unlawful stalking:

Section 359C

(1) For section 359B(a), it is immaterial whether the person doing

the unlawful stalking—

(a) intends that the stalked person be aware the conduct is

directed at the stalked person; or

(b) has a mistaken belief about the identity of the person at

whom the conduct is intentionally directed.

(2) For section 359B(a) and (c), it is immaterial whether the

conduct directed at the stalked person consists of conduct

carried out in relation to another person or property of another

person.

(3) For section 359B(b), it is immaterial whether the conduct

throughout the occasion on which the conduct is protracted, or

the conduct on each of a number of occasions, consists of the

same or different acts.

(4) For section 359B(d), it is immaterial whether the person doing

the unlawful stalking intended to cause the apprehension or

fear, or the detriment, mentioned in the section.

(5) For section 359B(d)(i), it is immaterial whether the

apprehension or fear, or the violence, mentioned in the section

is actually caused.

As shown in several Queensland cases, there appears to be some confusion as to the exact meaning of s 359B(d)(i), specifically in relation to the word, ‘would’ thus indicating that there may be a requirement that the ‘stalked person’ must have some knowledge of the alleged stalking, as will now be discussed.

Ambiguity of Unlawful Stalking – s 359B(d)(i) knowledge on the part of the Victim

The ambiguity with unlawful stalking in Queensland occurs because there is no explicit reference in the legislation that requires the victim to be aware they are in fact being stalked. The section merely states that the act be sufficient so that it ‘would’ cause the stalked person apprehension or fear, reasonably arising. In situations where there does not appear to be evidence of the accused actually causing detriment to the stalked person pursuant to s 359B(d)(ii), the effect of s 359B(d)(i) works to include the potential or likelihood of apprehension or fear of violence reasonably arising, as opposed to requiring the person actually experiencing the fear or the apprehension of it. In other words because the legislation refers specifically to the ‘stalked person’, there would appear to be a requirement to assess that person and not any person; thus requiring the imposition of a subjective test on the part of the victim as well as an objective assessment based on ‘reasonableness’.[4] It is the wording of this provision that would appear to be unsettled and subject to further judicial scrutiny.

Two cases that illustrate this ambiguity are R v Davies [2004] 279 and the more recent case of Re Taylor (2009) 195 A Crim R 53.

In the case of Davies, a pre-trial ruling held at the Beenleigh District Court in 2004 ruled that s 359B(d)(i) is not made out unless the ‘stalked person is aware what’s going on and is reacting to that awareness …’[5] One of the questions before the Court was whether it was necessary for the person stalked to be aware of the stalking activity? The accused was charged with two counts of unlawful stalking against his two step daughters. The accused installed a hidden camera in the ceiling cavity of the family bathroom. From time to time when either of the complainants were undressing or showering in that room, the accused would activate the camera and watch the complainants on a monitor in another room, or would record them on video tape.[6] The alleged acts were carried out between 31 May 2001 and 22 January 2003.[7]

The two complainants only became aware of the actions of their step father when their brother alerted authorities upon discovering the existence of the video camera. Once informed of their step father’s actions, the girls’ reactions were not consistent with the apprehension of any fear of violence to themselves or of property,[8] or the suffering of actual detriment[9] as required. Rather, the actions were that of anger and annoyance and in particular a concern that the video evidence might be circulated to others.[10] During the course of proceedings, McGill DCJ discussed the meaning and operation of s 359B(a)-(c) and referred to the explanatory notes to the amended section from 1999 in order to derive meaning of s 359B(d)(i). Ultimately, McGill DCJ concluded that,

It is not stalking unless the person concerned, the stalked person, is aware of what is going on and is reacting to that awareness so as to satisfy paragraph (d) … It seems to me that it is not stalking to engage in conduct, the stalked person is entirely unaware of merely because once the stalked person finds out about it later the stalked person is unhappy about it.[11]

His Honour reached the conclusion that the acts perpetrated by the accused were insufficient to have breached s 359B(d)(i) on the basis that the said acts did not cause the victim apprehension of fear of violence. The mere fact that there was an element of ‘indecency’ about the behaviour, did not necessarily constitute a breach of the anti-stalking provisions. Emphasis here was given to the requirement of causing actual detriment or the potential to cause apprehension of fear of violence. His Honour therefore reached the conclusion that the acts, despite being ‘indecent’ in nature, did not breach either of the two provisions in s 359B(d).

His Honour indicated that in order for the section to be made out completely it is a requirement for the victim to become aware of the actions at some stage since only then can it be ascertained whether the acts would cause apprehension of fear of violence. Despite this, His Honour stipulated that the knowledge on the part of the victim did not need to coincide exactly with the timing of the acts in question.

In some circumstances there might be some lapse of time [between] the act and the stalked person becoming aware of it. … But it seems to me that even in relation to that, unless the stalked person is made aware of it at some time, then it is difficult to see how either of the detriments could be suffered.[12]

Thus, while it appears there is a temporal requirement that the victim have knowledge of the alleged behaviour, it is not necessary that the knowledge be contemporaneous with the alleged behaviour. Unfortunately, his Honour offered no further clarification on this point as to when the victims would need to have knowledge of the relevant acts. His Honour also did not provide any clarification as to the appropriate test to determine how the accused’s actions ‘would’ cause the stalked person apprehension or fear of violence.

A similar situation arose a number of years later in the case of Re Taylor (2009) 195 A Crim R 53 where the question once again related to whether the victim needed to be aware of the actions of the stalker in order for the offence to be made out.

In Taylor, the accused was charged with, among others things, one count of stalking his estranged wife and daughter while in possession of an automatic shotgun.[13] Prior to the day in question, the accused went to great lengths to seek the location of his wife and daughter. Upon learning of their whereabouts, he obtained a number of items including a knife and a map and drove interstate to the area where he suspected her to be. Upon locating his wife, he laid in wait to avoid detection from them and others, but was ultimately apprehended by police after a tip-off by a shop assistant.

In this case, the victims had no knowledge of the accused’s actions until they were informed by the police. Applegarth J considered the ruling in Davies but unlike the outcome of that case, concluded that there was sufficient evidence to deduce that the acts of the accused ‘would’ cause the wife apprehension or fear, reasonably arising, of violence against her.[14] His Honour made it clear that Davies was not like the present case.

This is not a case, … in which the complainants were simply angry and upset. The conduct would also cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to her, or another person.[15]

Applegarth J accepted the argument that the complainants were not aware of the accused until after the arrest. Importantly, it was only after the arrest of the accused that the ‘unlawful stalking was in fact completed upon their becoming aware of those matters.’[16] The crucial factor required for the offence to be made out was that the acts have the ‘causal potency’ to satisfy the detriment pursuant to s 359B(d)(i).[17] This would indicate that stalking is a continuing offence in the sense that it is only complete when the victim is made aware of the acts and that such acts have the ‘causal potency’ to cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to the stalked person.

While Applegarth J in Re Taylor and McGill DCJ in Davies both agree that there is at least an ‘implicit’ requirement of knowledge of the acts,[18] at some point, there would appear to be a number of questions still unanswered. Of greatest significance is the fact that the section is silent on the knowledge aspect of the victim, and it is arguable that a higher court could determine that it is not a requirement that the victim have any knowledge at all of the acts. It is certainly arguable that the purpose of the criminal law is to prohibit offending behaviour and it should not matter whether a person is aware of the behaviour or not since this changes nothing of the offending acts.

A different question that remains relates to which test to apply in determining whether the victim ‘would’ have the necessary apprehension of detriment. Given that the section refers to ‘reasonably’ arising, and the ‘stalked person’, the statute does appear to contemplate the use of an objective standard. However, is this an objective assessment of an ordinary person in the position of the ’stalked person’, thereby taking into consideration the personal attributes of the victim, or is it an objective assessment using an ordinary person test, irrespective of the personal characteristics of the complainant? The judgments in Re Taylor and Davies would indicate the former is more likely to apply, however in the absence of judicial clarification, the matter remains open to debate.

One way to shed more light on the issue, might be to examine more closely the purpose of the anti-stalking legislation, and this will be the topic of future posts.

[3] s 359B(c)(i)-(vii). Interestingly, s 359B(c)(ii) has been amended to allow the ‘contacting’ to occur ‘in any way’ by telephone … email ‘or through the use of any technology’. This was amended to allow for the increased electronic means of communication. It will be interesting how the law adapts to future cases involving alleged stalking by use of social media sites such as Facebook, Twitter and the like.

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This article raises a dilemma that exists for the judiciary in relation to s 359(d)(i) of the Qld Criminal Code dealing with unlawful stalking. The ambiguity was highlighted in several cases where the victims were unaware of the alleged stalker’s activities until after the perpetrators were apprehended by the authorities. The unusual question then arose as to whether the victims were required to show a mental element—namely knowledge or fear—of the alleged stalking activity. Some case law suggests that the courts are reluctant to interpret the legislation in a way that requires the prosecution to show that the victim was aware of the alleged stalking. However, such an interpretation may not be completely correct given the wording of the provision

Introduction

Is there a legal requirement in Queensland for the victim of stalking to have any prior knowledge that he or she is being stalked in order to assign criminal culpability to the alleged stalker? The ambiguity lies in the amended form of s 359B(d)(i) of the Criminal Code (Qld). There are occasions, when a person will stalk their victim in secrecy, and it is those types of cases on which this discussion focuses. If there is neither any knowledge nor harm stemming from a person secretly looking at or observing another, then is it fair to say that that the person has committed any offence? Why would the coercive powers of the criminal law be invoked in this instance? Is it not an unnecessary infliction of the state’s power to prosecute a person for what could appear to be ‘everyday’ activities if there is no knowledge and therefore no physical or psychological harm that stems from the alleged stalker’s activities?

These questions pose difficulties for the judiciary – how does the arbiter of law seek to discern the purpose of the Code in this instance when so called ‘everyday’ activities can also be interpreted in rather different contexts as constituting conduct falling within the ambit of unlawful stalking? The work of Ronald Dworkin in his seminal text, ‘law as integrity’ posits the argument that judges decide matters of law based on ‘principles’, which is often a form of disguised morality. Applied in this context, a Dworkonian approach might assume that judges make decisions imbued with his or her sense of moral fairness as it relates to the victim and the alleged stalker. With that in mind, it might be a case that the decision will by and large depend on the individual judge. Perhaps if we examine the purpose of the anti-stalking legislation to gauge why anti-stalking legislation exists in the first place.

The Genesis of Anti-Stalking Legislation

The offence of stalking relates to a range of behaviours, which are perpetrated by individuals of varying personality types.[1] Pinals cites an array of studies conducted on those who have either displayed a propensity for stalking or who have been apprehended for the offence.[2] From this, Pinals asserts that stalking ‘typology’ is a factor of the individual stalker’s psychological status, his or her relationship to the victim and the motivation underlying the reasons for stalking.[3] Of interest for this discussion are those who pursue their intended victim(s) in both complete anonymity regarding the stalker’s identity and also a desire to conceal from the victim any trace that the victim is being observed. Such behaviour could be the precursor for other more serious crimes involving actual physical harm to the victim and would therefore constitute predatory characteristics.[4] This article however concentrates on a situation where the victim is totally unaware they are the target of covert surveillance by another person.

In relation to the first question as to whether the existing legislation requires the victim to be aware of the offending behaviour,[5] this is largely a statutory interpretive exercise that seeks to determine the limits of the current posited law. Such interpretation seeks to discern whether or not the Crown need show that the victim possesses the requisite mental element, that is: (1) knowledge or awareness of the other person’s actions; or (2) whether that knowledge is sufficient to cause an apprehension of fear.

The addition of stalking as an offence in Queensland was precipitated by the introduction in 1990 of anti-stalking legislation in the United States of America in the state of California where the initial motivation for creating such an offence came from situations arising from crazed fans stalking a number of celebrities.[1] The purpose behind the legislation in the US, therefore, was to criminalize ‘the intentional and repeated following or harassment of another person and the making of credible threats with intent to place that person in reasonable fear of death or bodily harm’.[2]

Queensland was the first Australian state to enact anti-stalking laws in 1993.[3] At the time of the introduction of the new provisions of the Criminal Code,[4] it was argued by the Attorney General that the offence of stalking was,

[a] generic term … which collectively describes a wide variety of fact situations where one person may follow, contact, put under surveillance or otherwise harass or intimidate a second person, but stops short of committing an offence against that person or his or her property.[5]

Swanwick cites various definitions of stalking which seem to imply similar meanings in that such behaviour consists of persistent and possibly a lethal pursuit of a person(s) by another, and a ‘niche of anti-social, threatening course of behaviour … which on the surface is innocent but which taken in context, assumes a more threatening significance’.[6] Significant here is Swanwick’s reference to the notion that certain behaviours give the appearance of being innocent, while, when observed in context, imply a more sinister rationale. The implications of this represent some problems for assigning criminal liability because this may appear to be an unreasonable imposition of the criminal law on those engaged in what could only be described as innocuous and everyday behaviours.[7] Indeed the apparent ‘innocence’ of the individual behaviours considered in isolation of other material facts would make it difficult to report such matters to the police.[8]

The various definitions of stalking seem to indicate a number of generic behavioural traits that the criminal law was attempting to proscribe in the formulation of anti-stalking legislation. It is interesting to note the language of the then Attorney General with reference to the ‘surveillance’ of one person by another. A plain meaning of the term would indicate that surveillance connotes a ‘close observation’ of another person,[9] while in a legal context, the term might indicate it involves some ‘form of covert’ activity which involves ‘secretly observing … the movements of persons.’[10]

In the context of this discussion, it is this latter meaning that perhaps provides the best insight into one of the purposes or the underlying intentions of the Queensland Parliament in introducing the anti-stalking legislation. That is, in so far as the meaning of the Attorney General’s language, there was always an intention that stalking would consist of behaviours that the intended victim neither knew were occurring nor is it a requirement for the victim to be aware they were being stalked. This is significant since if stalking was intended to include these behaviours, then it is clear that there is no need to consider the knowledge, and therefore, apprehension of fear of the victim in assessing the liability of the alleged offender.

[1] Ross Swanwick, ‘Stalkees Strike Back – The Stalkers Stalked: A Review of the First Two Years of Stalking Legislation in Queensland’ (1998) 19(1) University of Queensland Law Journal ; ibid26, 26-7.

[5] Queensland, Parliamentary Debates, Legislative Assembly, 9 November 1993, 5473 (Hon D M Wells) in Ross Swanwick, ‘Stalkees Strike Back – The Stalkers Stalked: A Review of the First Two Years of Stalking Legislation in Queensland’ (1998) 19(1) University of Queensland Law Journal 26, 26-7.

[1] Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (3rd Ed) (Lawbook Co, 2010) 601-3. Here the authors list five primary types of stalkers identified by psychiatrists – Intimacy Seekers, The Resentful, The Rejected, The Predatory and the Incompetents. In this discussion there is no distinction between the individuals who stalk, only those who wish to keep their actions from being discovered by the victim.

[5] That is, whether there is a legal requirement that a victim of an alleged stalking needs to be aware that particular actions of another person are being directed against them, in order for the Crown to secure a successful conviction of stalking?

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This discussion puts forward the argument that the failure to devolve specific evidence on which the Director of Public Prosecutions sought to detain and later charge Dr Mohamed Haneef represents a clear miscarriage of justice. Fundamental principles of natural justice require an accused perpetrator to have available the evidence for which accusations of wrongdoing are based unless there exist reasons for the contrary. National security was given as a reason for not disclosing the evidence. Matters of an evidentiary nature were not provided to the accused or the accused’s legal council, yet the same evidence was used in secret to obtain prolonged periods of detention. Haneef’s case when viewed from a human rights perspective, reinforces the need for the rules of evidence to be carefully assessed on balance of the individual’s rights versus the perceived threat to national security.

The arrest, detention and subsequent threatened deportation of Dr Mohamed Haneef represents a clear miscarriage of justice as a direct result of suppressing vital evidence which could not be challenged by the defence. The issue was compounded by the actions of the then Federal Government and the Commissioner of the Australian Federal Police (“AFP”) by leaking select pieces of information to the public in the guise of evidence to prove Dr Haneef’s guilt.

Courts do have legal authority to order certain information or evidence to be suppressed in the public interest, particularly for national security. However, in the Haneef affair, it is unclear that such an order was warranted given the lack of evidence on which the accused was charged. What has become clear is that the political motivations behind suppressing the evidence was greater than any danger that Dr Haneef posed for the community.

The Haneef case raises a number of questions relating to the legitimacy of suppressing evidence, particularly in relation to criminal matters where the consequences are great. This discussion seeks to examine the various grounds for suppressing evidence and in doing so, argues that suppression of evidence is an abrogation of the rule of law and can lead to a violation of human rights.

The Haneef Affair – Background

On 2 July 2007, Dr Haneef was arrested at Brisbane Airport and detained by the Australian Federal Police until 14 July without charge by virtue of Part 1C of the Crimes Act1914 (Cth).[1] While in custody on 14 July, Dr Haneef was charged with an offence under the Criminal Code 1901 (Cth)[2] in violation of anti-terrorism provisions that he allegedly provided a SIM card to suspected terrorists in the United Kingdom. What followed was a series of court appearances and arguments from the police that Dr Haneef should remain in custody while police carry out further investigations.[3]

Much of the argument presented by the prosecution was argued in secret without the defence being allowed to be present to hear specific evidence put to the magistrate.[4] The reasons for this was argued on the basis that much of the evidence was sensitive and disclosure could jeopardise investigations already underway in Australia and overseas.[5] Despite the prosecution formally withdrawing the charges, Dr Haneef’s work visa was subsequently cancelled by the then Minister for Immigration Kevin Andrews on the basis that Dr Haneef was of bad character.[6] This meant that Dr Haneef could be detained in immigration detention under the Migration Act 1958 (Cth).[7]

The Current Law of Evidentiary Non-Disclosure

The legal basis for the suppression of information is generally argued in the pretext of public policy since on the basis that it is not in the public interest to disclose all relevant information in court proceedings in all situations.[8] Courts must then balance the public interest against the interest of the administration of justice.[9] The issue for the courts is further compounded when the Crown is seeking to suppress evidence, the grounds for which give the appearance of being politically motivated[10] or over zealous paranoia.[11]

In Sankey v Whitlam[12] it was stated by Gibbs ACJ and Stephen J that the court ‘will not compel or permit the disclosure of information where to do so would be injurious to state interests’. Damage to ‘state interests’ can be broadly taken to mean the detriment occurring to national security or other national interests and there does not appear to be a fixed description of what constitutes national interests.[13]

A claim to public interest immunity is based on an argument that particular documents belong to a ‘class’ of documents and by virtue of their very nature should not be given to a party in a proceeding.[14] Such documents include but do not appear to be limited to, Cabinet papers, governmental papers, minutes of discussions between heads of departments, Cabinet submissions and documents relating to high level government policy.[15] The threat to national security can arise when the defence or diplomatic relations of a nation are in jeopardy by disclosing specific evidence.[16]

Proponents of suppressing evidence argue that some information is so sensitive and important to the state that the need for non-disclosure would outweigh the ‘administration of justice’.[17] Usually this arises in time of war and in the case of Asiatic Petroleum Co Ltd v Anglo-Persian Oil Co Ltd[18] the distinction was drawn between the nature of the information sought to be protected. In that case it was held that the information must be more than merely confidential as opposed to where the information will be harmful to the general public interest and cause actual detriment to the state.[19] Further examples show that the courts are willing to suppress documents that are specifically related to the production of submarines and other defence infrastructure since there is a specific risk to national security were that information fall into the hands of the enemy.[20]

In criminal proceedings, the suppression of evidence on the basis of public interests is generally given to protect the identity of police informers and in Queensland, such prohibition is incorporated into statute.[21] Suppression of information for criminal proceedings can also be permitted where the likelihood of disclosure would lead to failed investigations. In the case of Attorney General (NSW) v Stuart, where police investigations were on foot immunity was given since the production of information that could have been used as evidence in a trial, would have had serious implications for the future direction of other related investigations.[22]

There is little disputing that there exists sufficient precedent allowing the AFP to apply for a suppression order in the case of Dr Haneef on the basis of national security or other public interests. However what has come to light in the collapse of the prosecution’s case, is that there was insufficient evidence from the beginning to not only substantiate a trial but also to keep Dr Haneef detained for extended periods.[23] The fact that the AFP were able to obtain a number of judicial orders keeping Dr Haneef in detention without disclosing evidence was in itself a miscarriage of justice.

Miscarriage of Justice: The Right to a Fair Trial

In the Haneef affair, an actual miscarriage of justice occurred in the prolonged detention of Dr Haneef resulting from the defence not being able to scrutinise important information used as the basis on which to detain and subsequently withdraw Dr Haneef’s work visa.[24] The consequences of suppressing that information could have lead to a trial where the defence had to prepare submissions blind to much of the substance behind the allegations. A further consequence of which may have lead to the incarceration or deportation of Dr Haneef. Such a failing to disclose specific evidence is a clear violation of the accused person’s liberty, right to know the case against him, the right to a fair hearing and the presumption of innocence.[25]

The suppression of evidence violates the principles of a fair trial and open justice in criminal trials.[26] The issue is relevant to natural justice and procedural fairness which themselves are regarded as fundamental principles in the rule of law as recognised in modern democratic societies.[27] A general principle of the ule of law doctrine operates whereby ‘all individuals and groups recognise an obligation to comply with law, and act accordingly’.[28] Walker argues that a fundamental component in the rule of law is that any law should be based on the respect for the ‘supreme value’ of humanity.[29] Such respect entails that the law provide dignity and equality for those who come before it.[30]

The preamble to the Universal Declaration of Human Rights (UDHR) states that ‘inherent dignity’ is the foundation of peace and justice.[31] Article 1 of the UDHR states that ‘all human beings are born free and equal in dignity and rights’. Dignity is therefore a universally recognised right and an essential component for the well being of all mankind. The meaning of ‘dignity’ can be described as a quality of state of being[32] in humans and is as much associated with how an individual sees themselves as are perceptions as to how others see one’s self.[33] The violation of dignity is associated with ‘dehumanising and turning the individual into a cog in an impersonal social machine’.[34]

Justice Spigelman of the New South Wales Supreme Court has written that a fair trial to an accused is paramount and;

‘The right of an accused to fair and timely disclosure of the Crown case and to materials held by the Crown, so that all relevant evidence must either be led by the Crown or made available to the defence is well established.’[35]

Maccormick argues further that legal certainty with regards to evidence is a hallmark trait of a fair trial.[36] Certainty in the law is fundamental since such certainty provides society with specific rules and standards by which citizens’ conduct will be judged and the legal requirements they must satisfy to provide for legal validity of those acts.[37]

Conclusion

The former Attorney-General, Mr Phillip Ruddock argues that terrorism is one of the greatest threats society now faces.[38] Such sentiment is the underlying philosophy for the previous Government’s counter-terrorism policy, subsequent legislation[39] and trials that have followed. Such a philosophical reasoning has appeared to have permeated the courts as Gleeson CJ states in the context of control orders;

‘the exercise of [such] powers, independently, impartially and judicially, especially when such powers affect the liberty of the individual, would ordinarily be regarded as a good thing, not something to be avoided. To decide that such powers are exclusively within the province of the executive branch of government would be contrary to our legal history, and would not constitute an advance in the protection of human rights.’[40]

It seems therefore, that the courts are willing to give wide interpretation to the new anti-terror laws and this has been shown in the case of Thomas v Mowbray where a control order was placed on an individual despite there being a complete lack of evidence for which to convict the accused in an Australian court.[41]

However, as exposed by the Haneef affair, there is a fundamental problem in deviating from providing the accused with a fair trial by suppressing evidence on the basis of national security or other public interests. The problem leads to a violation of the rule of law with the way evidence is presented in court in absence of making same available to the defence for scrutiny. This problem was only exposed due to the high degree of media attention and as such it raises the question whether this type of incident is isolated only to the area of suspected terrorism or can occur in any criminal case.[42]

Perhaps Benjamin Franklin said it best when he stated that ‘any society that would give up a little liberty to gain a little security will deserve

[24] Dr Haneef was detained for 12 days before a bail application was successfully lodged. The AFP tried unsuccessfully to keep Dr Haneef detained while they gathered sufficient evidence for which to proceed to trial.

[25] Andrew Lynch, ‘Achieving Security, Respecting Rights and Maintaining the Rule of Law’ in Andrew Lynch, Edwina Macdonald & George Williams (eds) Law and Liberty In the War on Terror (2007) 222, 231.

[26] Nicholas Niarchos ‘Terrorism Laws and the Abrogation of the Rule of Law in Australia’ (2008) 84 Precedent 10, 13.

This discussion poses the simple question: to what point do tattoos, body piercings, cosmetic surgery and other body adornments depart from mere body art and become non-fatal criminal offences, such as assaults, wounding, or grievous bodily harm? Central to this question is the issue of consent and whether one can indeed legally consent to such things when to do so would appear to be unacceptable levels of ‘harm’. A second normative question is posed asking ‘should’ such practices be allowed?

It is asserted that the law has reluctantly come to accept many of these practices so long as valid consent is evident. The reasons for this it seems is because courts are reluctant to rule on possible infringements of fashion ‘sense’ so long as the acts are consented to by the individual and impacts little on others, despite the possible ‘offensiveness’ to others – which is not a valid consideration, it seems.

Body adornment, a collective term used to describe practices such as tattooing, body piercings and cosmetic surgery, has existed in various forms for centuries throughout all societies. Researchers such as anthropologists, psychologists and sociologists have attempted to explain the reasons why such behaviour exists and deduce a number of explanations that centre on the need for differentiation within the group. Traditionally, the more overt forms of body adornment, such as tattooing and piercings have mostly appeared throughout indigenous cultures in varying degrees for varying reasons. However over the centuries a number of practices have been adopted within non-indigenous cultures to the point where activities such as tattooing, are now widely embraced into the realms of mainstream acceptability. A cursory glance at the number of tattoo establishments and surgeons who are engaged in cosmetic procedures, not to mention their outputs, is evidence of the popularity of these practices.

But what of the more extreme forms of body adornment – are these also acceptable? Can all body art and surgical procedures be acceptable when to do so might accept that those who are participating in such activities are actually engaging in ‘harmful’ behaviour? The issue then becomes whether such actions do indeed fall within the reach of the criminal law and are therefore worthy of criminal sanction.

Traditionally the way the criminal law has dealt with such issues is to categorise the behaviour and the consequences of that behaviour within the boundaries of non-fatal offences such as assaults, wounding or grievous bodily harm. Of central importance for assault-based offences is the issue of consent so it could be argued that there could never be an assault so long as the person gives lawful consent to the procedure. The question is less clear when one observes certain types of piercings, for example, which might constitute a more serious offence such as a wound or a grievous injury. These group of offences, the question of consent is not generally an element of the offence and is therefore irrelevant when determining criminal responsibility. Despite this, the lack of prosecutions involving those who engage in these activities might indicate that the law is still recognising that consent does play a part in relieving criminal culpability to what would otherwise be a serious criminal offence.

The two central questions posed for this discussion are whether a person can and should be able to consent to some or all types of body adornment thus relieving liability to the perpetrator of these acts? These questions are premised on the supposition that, to accept that a person can and should be able to deal with their body for the purpose of adornment, could indeed ‘offend’ a central tenet of the criminal law, which is to protect individuals and society from physical harm. The two questions are differentiated on the basis that the former deals with the current state of the law as regards specific offences dealing with physical harm such as assaults, wounding and grievous bodily harm to mention a few. This question simply looks at the current state of the law and tries to ascertain how courts and legislatures have dealt with the issue to date. Such an understanding of the way legal institutions have considered the issue is informative since it provides some direction on the current underlying jurisprudence.

The second question, however, seeks to frame the issue of ‘harm’ in a normative context by seeking to understand whether the law should intervene with an individual’s right to do as they please when it comes to cosmetic adornment. Put another way, whether the state has an interest in regulating against those who engage in acts that might be seen as constituting ‘harm’. Naturally, this question raises a number of complex and possibly, contentious positions since the idea of regulation could be seen by some as being an anathema to the rights and freedoms of individuals to do as they please when it comes to ‘fashion’ and such an incursion into the private realms of the individual may well be unacceptable incursions into the rights of the individual of which the state has no interest.